Who let the watchdog out?

The Scandinavian word "ombudsman" isn't synonymous with high-profile political intrigue and attention-grabbing headlines.

Yet lately the European Union's ombudsman, Emily O'Reilly, is dominating the news cycle in Brussels, transforming a previously staid and unglamorous office into an investigative machine. Her approach leaves some in the institutions that she targets muttering about mission-creep and self-aggrandizement.

Much of O'Reilly's rise to EU stardom is about being at the right place at the right time. Parliament first elected her to the ombudsman's position in 2013, months after a tobacco lobbying scandal forced the first-ever firing of a European commissioner, the Maltese John Dalli, and stoked demands for more transparency in Brussels. Last year, Jean-Claude Juncker ran successfully for the Commission's top job by promising to open up the town. Once in office, he firmed up disclosure rules about contacts with lobbyists, placing the once-little used EU Transparency Register at the center of a new push for greater openness.

The political moment was ideal for O'Reilly and her office, which was set up 20 years ago in Strasbourg to look into claims of "maladministration" in EU institutions. The former investigative journalist, a blonde 57-year-old who speaks Irish and French fluently, has chosen prominent and sensitive political targets, in a way that differentiates her from her predecessor, the Greek Nikoforos Diamandouros.

In some cases, she breathed life into what had previously been long-standing investigations, such as this week's decision to lambaste the Commission over its poor record on openness in its dealings with tobacco lobbyists.

She has probed the way the EU mission operates in Kosovo and the bloc's ongoing trade talks with America, and called the European Central Bank to account after one of its board members disclosed public information. Her investigation prompted the Bank to issue new "speaking engagement guidelines" this week. In other cases she is delving deep into how the EU makes laws.

There's little to suggest this spike in activity has increased the real-world impact of the ombudsman's findings. Institutions and agencies are still free to ignore them. What has changed is the landscape: Eurocrats and politicians are now waking up to the prospect that the EU's watchdog is determined to name and shame.

"It's just 'mission'"

O'Reilly's targets and others raise questions about her motives and tactics. Some Irish observers in Brussels say she has one eye on the presidency of Ireland, a role that could become vacant as early as 2018. Even if she doesn't harbor any political ambitions, as her office insists, her obsession with transparency and talent for getting publicity for her cases is undeniable.

Her activist approach in particular is resented by the Commission and the European Council, where officials mutter about the ombudsman becoming a battering ram for the European Parliament and its own ambitions for power. The Council recently complained about the ombudsman going beyond its remit to investigate "complaints of maladministration."

O'Reilly brushes off the criticism.

European Ombudsman Emily O'Reilly by Ellie Foreman-Peck

"It's not 'mission-creep', it's just 'mission'," O'Reilly said in an interview. Her powers are clear under EU treaties and the Charter of Fundamental Rights, she added, saying that all she is doing is using them to the "fullest extent" on behalf of citizens.

As for the public visibility, O'Reilly said she is just delivering on promises made in the course of her two successful campaigns to get elected to the post by the Parliament.

"[My] strategy is based on three pillars of visibility, relevance and impact," O'Reilly said. "I want to make the office as strong and as useful as possible."

The European ombudsman has no enforcement powers, leaving O'Reilly dependent on her bully pulpit to shame the EU institutions to take on its recommendations.

Where O'Reilly is making her presence felt is with her use of "own-initiative inquiries," which her office launches without having a formal complaint of wrongdoing. In 2014 the Ombudsman opened 17 such inquiries, compared to just nine in 2013, three of which were initiated by O'Reilly when she took office in July.

Some of them touch on the biggest political controversies in town.

In July 2014, the ombudsman launched a far-reaching inquiry into what the office alleged was a lack of transparency around the Transatlantic Trade and Investment Partnership (TTIP) negotiations with the U.S.

The ombudsman faulted the European Medicines Agency — the Continent's answer to America's Food and Drug Administration — for its handling of clinical trials. It said the agency's new transparency policy did not go far enough to open up trials to public scrutiny and could undermine the Commission’s commitment to greater openness.

Going after even bigger targets, her recent investigation into the so-called trilogue takes direct aim at the heart of the EU's decision-making process. The trilogue is an informal deal-making mechanism involving the Council of the EU, the Commission and the European Parliament.

According to O'Reilly's office, the trilogues reach deals "that affect every EU citizen," and as a result the three institutions have an "obligation and an interest in legislating as openly as possible to maintain public trust."

In a draft letter prepared last month for the new secretary general of the Council, Jeppe Tranholm-Mikkelsen, and leaked to the Statewatch website, the Council challenged the premise of the ombudsman's trilogue inquiry, arguing that “the organization of the legislative process cannot be considered an administrative activity” and, as such, goes beyond its mandate.

The ombudsman's office shrugs off the criticism, noting that the same letter goes on to say that, in spite of its reservations, the Council was "ready to engage in a fruitful debate" with the watchdog.

O'Reilly vs EC

O'Reilly's criticism of members of the Commission has also created bad blood, particularly after her public evisceration of former competition commissioner Joaquín Almunia in 2013 over the issue of state aid to Spanish football clubs.

The ombudsman accused Almunia of ignoring allegations that Spanish national and regional governments supported, through tax breaks and other deals, four soccer and basketball teams, in violation of EU competition laws. In a statement, O'Reilly also accused Almunia of a conflict of interest, prompting angry shouting from members of Almunia's staff, according to an official who was at the commissioner's office that day.

"Not only is [state aid] bad administration, but to the European public it can look like a conflict of interest given the Commissioner's strong links to one of the soccer clubs in question," O'Reilly said. Almunia was a fan of club Athletic Bilbao.

"We knew she was campaigning to be reconfirmed by Parliament [in 2014]," said the official. "But we never thought she would do it at someone else's expense."

In a letter to O'Reilly sent in late December 2013, Almunia said he had informed the ombudsman that he was days away from opening an inquiry into the issue. As for the conflict of interest claims, Almunia wrote that he was "astonished by [O'Reilly's] insinuation" and wondered whether his being "an opera-goer and a user of the Internet" would prompt similar accusations in relation to his work on cultural issues or anti-trust cases against Microsoft and Google.

The ombudsman rejected the charge that she had deliberately ambushed the Commission with the timing of her announcement.

Her office told POLITICO this week that "we did in general fulfill our roles properly in this important case," saying that the Commission had taken four years to act on the state aid claim and, in spite of the ombudsman's prodding, had again been dragging its feet in launching its inquiry. The Commission launched its inquiry within days of the ombudsman’s criticism.

Tempers flared again in March 2015 when O'Reilly accused Almunia — who was by then out of office — of having made statements that gave an impression of bias in a banking cartel investigation.

Almunia declined to comment for this article.

Game-changer?

O'Reilly arrived in Brussels already battle-hardened.

She got caught up in a controversy over a book she wrote about the 1996 mob murder of the Irish reporter Veronica Guerin. At a time when Ireland was still grieving the first-ever assassination of a journalist in recent times, O'Reilly's book took an at-times critical look at Guerin's journalism.

She remembers the backlash her book sparked as "horrendous." One prominent print journalist publicly attacked her for impugning the reputation of a dead colleague.

Five years after the book's publication, she became the Ombudsman of Ireland, despite a difficult relationship with then Taoiseach Bertie Ahern.

In Brussels, O'Reilly said her job is to take on practices inside powerful institutions.

"When I open an [own-inquiry], the institution is told that it is for the purpose of assisting them in their work and not to criticize for the sake of it," she said.

Transparency campaign groups welcome the activist approach.

“She has taken up several dossiers which are very important for us, like how to achieve balance on [Commission] expert groups, TTIP and others," said Paul De Clerck, a Friends of the Earth campaigner who brought a conflict-of-interest concern before her about the appointment of former German politician Edmund Stoiber to a Commission advisory role. "[O'Reilly] has been more daring."

Yet the perception that the Ombudsman's zeal amounts to grandstanding is gaining traction.

Some lobbyists who attended a September 28 public debate on the transparency of trilogues in Brussels, organized by the ombudsman, said the inquiry attacked the one thing that the inter-institutional deal-making system has going for it: its informality.

"If you take the informality out of the process, then it will simply move somewhere else," one lobbyist said. "If the institutions can't reach a deal they will just throw the problem back at the Commission. That will expose the process to even more lobbying."

Others believe the ombudsman's higher profile has more to do with her public visibility — her media background makes her a polished subject — than any substantial increase in her ability to disrupt the way that the Commission and the Council go about their business.

"I would be very skeptical of the notion that an ombudsman's investigation could derail the Commission's course of action," said Nicolas Petit, a University of Liège professor who specializes in competition law.

"What the ombudsman does in competition is good for the press, but among practitioners of competition law these stories are anecdotal," Petit said. "O'Reilly's presence is not a game-changer."

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m.apelblat

“Mission creep”, “obsession with transparency”? The problem which the article doesn’t mention is that the ombudsman’s focus on “own-initiative inquiries” might be on the expense of the main role of ombudsman institutions – the investigation of complaints against public administration. A large number of complaints are not examined because they are considered “inadmissible” on arbitrary grounds.
That said, it makes sense for an ombudsman to initiate inquiries of issues which have been subject to many complaints in order to solve the underlying problem which has caused them. But normally, this would a task for the supreme audit institution – in the case of EU the European Court of Auditörs – who is a better position to carry out an in-depth audit resulting in more precise recommendations. The European Ombudsman’s inquiries are not always prompted by a mass of complaints and are limited to a review of responses to questionnaires. What is needed here is cooperation between the ombudsman and audit institutions.

Posted on 10/8/15 | 9:53 AM CET

hari naidu

You’ve to have an actual case experience with EU Ombudsman to understand (1) EPs solely responsible for its budget & function under law. (2) Maladministration refers principally to EU institutions – not any person. (3) There is a statute of limitation (30 yrs) on ALL cases.

EU Council has derogated to itself powers which it didn’t have before Lisbon Treaty. EP was and still is represented by its sovereigns – but Council has more or less derogated to itself to make EP powers null and void (by whatever means!).

So the q’ arises: how do you control so-called maladministration by the Council?

Or is the Council run by Merkel on same principles as her Chancellery in Berlin?

Posted on 10/9/15 | 11:38 AM CET

James

There are such important decisions that are being taken through the “tialogue” that affect citizens that cannot let them go unnoticed because the Council is using informality as a cover for national governments to say something in public and take an opposite course in the discussions with the EU insitutions. (See VW emissions scandal). The more transparency the better regulation for the citizens. It is certainly interesting to see lobbyists complaining that they will have more work.business to do if there is more transparency. As for the comment of Mr. Petit, ceratinly legally the Ombudsman does not have decisive powers, however, he is ignoring the whole notion of this article which is to show the political power that Ms. O’Reilly has been excercising.